MBE Civil Procedure

Question 1

Personal Jurisdiction

Answer 1

Under the FRCP, a court must have personal jurisdiction in order to adjudicate the rights and liabilities of a defendant. A court automatically has personal jurisdiction over a plaintiff by the plaintiff filing the case in the court. In order to have personal jurisdiction over a defendant one of the following must occur: (i) one of the four traditional bases for personal jurisdiction is satisfied, or the court has either (ii) general or (iii) specific personal jurisdiction.

Question 2

Four Traditional Bases for Personal Jurisdiction

Answer 2

1. Domicile - Domicile will be satisfied if the defendant is domiciled in the forum state. A human is domiciled in the one state in which he has (i) physical presence and (ii) an intent to remain indefinitely or permanently. A corporation is domiciled in its state of incorporation and where it has its principal place of business (the corporate nerve center from which the corporations high level officers direct and control the activities of the corporation).
2. Physical Presence - Service of Process on the defendant while he is physically present in the forum state will satisfy this base unless the defendant was in the state only to answer a summons or was brought there by force or fraud.
3. Consent - Out-of-state defendants may consent to personal jurisdiction (can be express or implied).
4. Waiver - Unlike subject matter jurisdiction, a lack of personal jurisdiction can be waived by the defendant. A defendant waives any objection to personal jurisdiction by substantial participation on the merits before raising the objection (e.g., making a general appearance or not objecting in his first motion or response).

Question 3

General Personal Jurisdiction

Answer 3

A court has general personal jurisdiction over a defendant who is at home in the forum state. A human is considered to be at home in their state of domicile. Domicile is defined as the one state in which the defendant has (i) physical presence and (ii) an intent to remain indefinitely or permanently. A corporation is considered at home in the state in which it is incorporated and the state where it has its principal place of business. Principal place of business is defined as the corporate nerve center from where the corporations high level officers control and direct the corporations activities. When general jurisdiction is present, the defendant can be sued on any claim (even if the claim is unrelated to the defendant’s contacts with the forum state).

Question 4

Specific Personal Jurisdiction

Answer 4

A two-step analysis is involved in determining whether a court has specific personal jurisdiction. First, there must be a long-arm statute in the state that permits the court to exercise jurisdiction over nonresidents. Second, the exercise of such jurisdiction must be constitutional. The constitutional analysis looks at whether (i) the defendant has such minimum contacts with the forum such that (ii) jurisdiction does not offend traditional notions of fair play and substantial justice. To analyze minimum contacts courts look to whether the defendant purposefully availed himself of the benefits and protections of the forum state and whether it was foreseeable (defendant knew or reasonably should have anticipated) that the defendant could be sued in the forum state based on his activities. Further, even if minimum contacts is established, the plaintiff’s claims must arise out of or relate to the defendant’s contacts with the forum for specific personal jurisdiction to apply. Lastly to analyze fairness, courts look at (i) the burden on the defendant and witnesses whether it imposes a severe disadvantage in the litigation (the relative wealth of the parties is not determinative, (ii) the forum state’s interest in adjudicating the matter, (iii) the plaintiff’s interest in litigating in the forum state, (iv) the interstate judicial system’s interest in efficiency, and (v) the shared interest of the several states in furthering social policies.

Question 5

Subject Matter Jurisdiction

Answer 5

Under the FRCP, a federal court must have subject matter jurisdiction to hear a case. A judgment entered by a court without SMJ is void. SMJ cannot be waived.

Question 6

Federal Question Jurisdiction

Answer 6

A federal court has SMJ under federal question jurisdiction if the complaint alleges a claim that arises under federal law. Under the well pleaded complaint rule, the federal question must be presented on the face of the plaintiff’s complaint. Raising a defense or filing a counterclaim under federal law does not trigger federal question jurisdiction. The citizenship of the parties or the amount in controversy is irrelevant to a case under federal question jurisdiction.

Question 7

Diversity (and Alienage) Jurisdiction

Answer 7

A federal court has SMJ under diversity jurisdiction if there is complete diversity of the parties and the amount in controversy exceeds $75,000.

Complete diversity requires that every citizenship represented on the plaintiff’s side of the case must be different from every citizenship represented on the defendant’s side of the case when the case is field. The citizenship of each party to the action must be considered in order to decide whether complete diversity exists. The rules for determining citizenship vary depending on the type of parties involved:
1) for individuals, citizenship is determined by the individual’s stae or country of domicile (physical presence with an intent to remain indefinitely or permanently). An individual can only have one domicile at a time.
2) corporations hold dual citizenship for diversity purposes: (i) the state or country of incorporation and (ii) the state or country of its principal place of business (corporate nerve center from which the corporations high level officers direct and control the activities of the corporation – usually the headquarters).
3) unincorporated associations and partnerships are consdiered a citizen of every state of which its mebers are citizens.
4) for class actions, citizenship of each named party in the class who are suing count for diversity purposes. Class members that are not named may join without regard to citizenship.
5) for decedents, incompetents, and minors, the citizenship of the representative is irrelevant. The citizenship of the decedent, minor, or incompetent is used.

A nonresident alien is not the citizen of any state but is a citizen of their country. However, if the noresident alien resides and the citizen of a state reside in the same state, alienage jurisdiction is removed.

If a party attempts to create diversity by a sham transaction, such as assigning a claim for collection purposes merely to create diversity SMJ, the courts ignore the transaction and declare that diversity does not exist. However, plaintiffs may voluntary change their citizenship to create diversity after the COA arises but before the suit is commenced (case is filed).

The amount in controversy requirement requires that the plaintiff’s claim exceed $75,000 exclusive of interest and costs of the action.
1) If injunctive relief is requested, the relief may be valued by the benefit to the plaintiff or the cost of compliance for defendant.
2) A single plaintiff may aggregate all of her claims against a signle defendant to meet the threshold.
3) A single plaintiff may also aggregate all of her claims against multiple defendants if the defendants are jointly liable to meet the threshold.
4) If there are multiple plaintiffs, generally each plaintifff claim must meet the threshold requirement unless supplemental jurisdiction applies.

Moreover, a federal court does not have diversity jurisdiction for probate actions and domestic relations matters (e.g., divorce, alimony, child support/custody, action to probate).

Question 8

Supplemental Jurisdiction

Answer 8

Under the FRCP, subject matter jurisdiction determines whether a case may be heard by a federal court. Supplemental jurisdiction on the other hand determines whether a claim may be attached to a federal case. To invoke supplemental jurisdiction, there must be a case in front of the federal court that satisfies either federal question or diversity jurisdiction. The first step in analyzing supplemental jurisdiction is to determine whether the additional claim itself has subject matter jurisdiction (if so, the court can hear the claim independent of supplemental jurisdiction). If not, the claim cannot be heard on by the federal court unless supplemental jurisdiction can be invoked. To invoke supplemental jurisdiction, the claim that is being attached to the federal case must share a common nucleus of operative facts (shared fact pattern or same transaction/ occurrence) with the case that satisfied subject matter jurisdiction and are such that a plaintiff would ordinarily be expected to try them in a single judicial proceeding..

Diversity Jurisdiction Cases:
- Compulsory Counterclaims - a compulsory counterclaim is a counterclaim (usually the defendant countersuing the plaintiff) that arises out of the same transaction or occurrence as the original claim filed. A federal court sitting in diversity jurisdiction has supplemental jurisdiction over a compulsory counterclaim.

• Permissive Counterclaims - a permissive counterclaim is a counterclaim (usually the defendant countersuing the plaintiff) that does not arise out of the same transaction or occurence as the original claim filed. A permissive counterclaim can only be heard if it independently satisfies diversity jurisdiction.
• Cross-Claims - a cross-claim os a claim filed by a plaintiff against another plaintiff or by a defendant against a co-defendant. A federal court sitting in diversity jurisdiction has supplemental jurisdiction over a cross-claim if the cross-claim arises out of the same transaction or occurence as the orginal claim.

Limitation for DJ Cases:
In cases based solely on diversity jurisdiction, claims by plaintiffs cannot invoke supplemental jurisdiction in a manner that would destroy or override the requirements of diversity jurisdiction. However, an exception applies to this limitation in situations where there are multiple plaintiffs and the claim by one of them does not meet the amount in controversy requirement. The plaintiff may invoke supplemental jurisdiction to get his claim attached into federal court with the plaintiff that satisfied the amount in controversy requirement.
However, if the original claim is based on diversity jurisdiction, supplemental jurisdiction is prohibited in the following situations: (i) joining a party would contaminate (destroy) complete diversity between the opposing parties; or (ii) the joined claim seeks less than $75,000 and is made by (1) a plaintiff against parties added through permissive or compulsory joinder, intervention, or impleader, or (2) a plaintiff seeking to join through compulsory joinder or intervention.

Court Discretion in DJ Cases:
Even if the requirements for supplemental jurisdiction are met the court has discretion to decline invocation of supplemental jurisdiction if: (i) the state law claim is complex or would predominate the case or (ii) the claim on which federal subject matter jurisdiction is based is dismissed early in the case.

Federal Question Cases:
A federal court sitting in federal question jurisdiction may hear a pendent state law claim under supplemental jurisdiction if the state law claim arises out of a common nucleus of operative facts as the federal law claim.

Question 9

Venue

Answer 9

Venue determines the judicial district in which a lawsuit may be filed or commenced. Venue is proper in a judicial district where:
1) any defendant resides, if all the defendants reside in the same state;
2) a substantial part of the events or omissions giving rise to the claim occured, or a substantial part of property that is the subject of the action is located; OR
3) if there is no district anywhere in the US that satisfies (1) or (2), a judicial district in which any defendant is subject to personal jurisdiction.

For venue purposes, the rules for determining the defendant’s residence vary depending on the type of party involved:
1) an individual is deemed to reside in the judicial district where he is domciled;
2) a business entity is deemed to reside in any judicial district where the entity is subject to personal jurisdiction with respect to the action in question; and
3) a defendant who is not a resident of the US, whether a U.S. citizen or an alien, may be sued in any judicial district.

Question 10

Erie Doctrine

Question 11

Removal

Answer 11

If a plaintiff files a case in state court and the defendant prefers to litigate in federal court, the defendant may remove the case to federal court if subject matter jurisdiction (either federal question or diversity jurisdiction) exists. The state court in which the case was filed originally need not have jurisdiction to hear the case for it to be removable. Plaintiffs may never remove a case. To remove, the defendant must file notice of removal in federal court stating the grounds for removal (either FQ or DJ). Permission is not required from either state or federal court to remove. The defendant then must attach all documents that were served in the state action and promptly serve a copy of the notice of removal on all adverse parties and file a copy of the notice of removal in the state court. Such removal must occur no later than 30 days after service of the first paper indicating that the case is removable (usually service of process). To remove, all defendants who have been served with process must join the removal (same document not needed). If defendants are served at different time, a later served defendant can timely move to remove the case and the earlier served defendants may join the removal even though their 30-day period may have expired. The proper venue for removal is the federal district court which embraces the state court in which the case was filed. It does not matter if this venue would have been improper under venue statutes if the case was initially filed in federal court.

Limitation for DJ Cases:
If the defendant is removing a case based solely on diversity jurisdiction there are two limitations. First, if the defendant is a citizen of the forum state, he may not remove the case (in-state defendant rule). Second, a case may not be removed more than one year after the case was filed in state court unless the plaintiff acted in bad faith to try to make the case non-removable.

Remand:
After removal, if a plaintiff believes that the case should not have been removed, the plaintiff must move to remand the case to state court. If the motion to remand is based on a reason other than subject matter jurisdiction (because objections to SMJ are never waived) the plaintiff must move to remand no later than 30 days after the filing of the notice of removal. A failure to do so, results in a waiver of the right to have the case remanded and the case will remain in federal court. A motion to remand based on SMJ is never waived and the plaintiff can move to remand based on SMJ at any time.

Question 12

Transfer

Question 13

Forum Non Conveniens

Question 14

Joinder

Question 15

Counterclaims

Question 16

Impleader

Question 17

Interpleader

Question 18

Intervention

Question 19

Class Action

Question 20

Pleadings

Question 21

Discovery

Question 22

Adjudication Without Trial

Question 23

Conferences

Question 24

Trial

Question 25

Judgment

Question 26

Post-Trial Motions

Question 27

Appellate Review

Question 28

Claim Preclusion (Res Judicata)

Question 29

Issue Preclusion (Collateral Estoppel)

Question 30

Stream of Commerce Personal Jurisdiction

Answer 30

Generally, there will be specific jurisdiction over a defendant if the defendant (i) places a product in the stream of commerce in the forum state and (ii) commits some other act to show intent to serve the forum state.

Question 31

Internet Personal Jurisdiction

Answer 31

Generally, internet cases involve either passive or active websites.

1) Passive Website - A passive website is a website that is used for information purposes rather than online sales and commerce. Generally, the maintenance of a passive website, without more activity in the forum, is insufficient for general jurisdiction.

2) Active Website - An active website is a website that is used for online commerce to make sales. The maintenance of an active website may be sufficient for general jurisdiction if the defendant is conducting significant business in the forum state such that the defendant is at home in the forum.

Question 32

Service of Process and Notice

Answer 32

A civil action is commenced by filing a complaint with the court. After the plaintiff files a complaint, a summons must be served on the defendant with a copy of the complaint. The plaintiff is responsible for having the summons and complaint served within 90 days after the complaint is filed with the court. Any person who is at least 18 years old and not a party to the action may serve a summons and complaint. The service of process provides notice to the defendant of the pending action. Accordingly service of process must be reasonably calculated to provide the defendant notice of the action.

An individual within a judicial district of the United States may be served by:
1) Delivering a copy of the summons and complaint to the individual personally;
2) Leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; OR
3) Delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

A corporation, partnership, or association may be served by deliverying a copy of the summons and complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process.

In addition, methods for serving process that are permitted by the law of the state (i) where the federal court sits or (ii) where service is made are permitted.

Service on a minor incompetent person may be made only by a method permitted by the law of the state in which service is to be made.

Unless prohibited by the foreign country’s law, an individual in a foreign country may be served:
1) in accordance with international treaty; if there is no treaty, service may be made:
2) by personal service in the foreign country;
3) in accordance with the foreign country’s laws;
3) as the foreign authroity directs in response to a letter request for guidance;
4) by having the clerk mail process to the defendant, with a signed receipt requested; OR
5) by any other means not prohibited by international agreeement as the court may order.

Question 32

Waiver of Service of Process

Answer 32

Answer

Question 33

Change of Venue

Answer 33

Proper Venue: If venue is proper, the court may nonetheless transfer the case for the convenience of the parties and witnesses and in the interests of justice to any any court where the case could have been originally filed (transferee court has SMJ+PJ+Venue - without waiver by the parties).

Courts willl consider both public and private factors showing that another court is the center of gravity for the case (burden on party seeking transfer):

Public: the court will consider things like what law applies, what community should be burdened with jury service, the desire to keep a local controversy in a local court.

Private: the court considers convenience. For example, it will look to where the defendant and evidence are found.

Minor exception: where venue is proper a court may transfer to an improper venue if all the parties consent (but P is unlikely to consent because P chose original proper venue).

Improper Venue: If venue is improper, the court must:
1) Dismiss the case; OR
2) Transfer the case to a venue in which the case could have been originally filed (SMJ+PJ+Venue).